Is Distinctive Law Downstream from Distinctive Judges and Counsel?

Noel Cox, The Influence of the Common Law on the Decline of the Ecclesiastical Courts of the Church of England, 3 Rutgers J. L. & Religion 1 (2001-2002): "If there is one lesson to be learnt from the experience of the Church courts since the Reformation, it is that their strength depended not just upon retaining the confidence of the bishops, clergy and laity, but that without a strong cadre of professional judges and counsel 'learned in the ecclesiastical law', they fall under the increasing influence of the common law. Without these personnel, and an understanding that secular judicial procedures are not necessarily appropriate to decide religious questions, the ecclesiastical courts were condemned to satisfy few when contentious issues are decided."

That point is being made about the dominance of the common law vis-a-vis the canon, but something similar might be said about the dominance of the common law vis-a-vis equity. That is explored in Equity: Notes on the American Reception.

Comments

[mydisplayname]

Section 6 of the essay opines that while equity's "discretionary power to correct the law //is// dangerous" equity remains "the anti-formalist element in a formalist system, a ‘safety valve’ that released the pressure on what would otherwise have been brittle and rigid." Upon reading the section, it came to mind that that which is venerable (accorded considerable respect because of age, wisdom, or character; a notch below beatified), that which is venerated (regarded with respect; revered), and that which is venomous (possessing and emitting a potion which seduces and stuns) all share a common root.

Other portions of the essay suggest to me that the instruction (from Deuteronomy 17:19-20) "it shall be with him and he shall read therein all the days of his life [...] That his heart be not lifted up above his brethren, and that he turn not aside from the commandment, to the right hand, or to the left" remains wise.

[Rev. Arthur L. Kirkland]

Who cares about Church courts in the modern world?

[Noscitur a sociis]

I’m all for reflexive and strident antitheism. But religion is real (not in the sense that its teachings are true, of course—they’re not—but in the sense that throughout history, people have believed in them and been motivated by those beliefs), and understanding its role in shaping society and societal institutions, including the law, is as valuable as any other historical undertaking.